Nunavut judge slams SCC ruling on trial deadlines

Justice Paul Bychok said in a recent judgment that the Supreme Court of Canada's Jordan decision on a person's legal right to be tried within a reasonable amount of time does not take Nunavut's unique circumstances into account. (FILE PHOTO)

A Nunavut judge is using a recent ruling to challenge the applicability of an important 2016 Supreme Court of Canada decision, which sets deadlines for criminal cases to be brought to trial or risk being thrown out.

The landmark Supreme Court of Canada decision, R. v. Jordan, changed the way superior courts across the country, like the Nunavut Court of Justice, interpret sections under the Canadian Charter of Rights and Freedoms that protect a person’s legal right to be tried within a reasonable amount of time.

Under the Jordan decision, indictable criminal offenses were given a 30-month deadline, minus defense-related delays or “exceptional circumstances,” to reach trial before the accused can petition a judge to throw the case out—a move known in legal jargon as a “Jordan application.”

Summary offenses, which are less serious, have a lower deadline of 18 months to proceed to trial under R v. Jordan.

But Nunavut Justice Paul Bychok questioned how his court can apply the “square Jordan peg into the round Nunavut hole while doing justice to Nunavummiut,” in a written decision released to the public, Feb. 1.

Bychok argued that the Jordan deadlines run contrary to Nunavut’s geography, Inuit Qaujimajatuqangit, and restorative sentencing practices for Indigenous offenders enshrined by the Gladue principles—which flow from another Supreme Court of Canada ruling.

“I do not believe the [judges who decided] Jordan intended trial judges to re-assert past colonialist attitudes and practices which ran roughshod over the Inuit,” Bychok said.

The judge called for a separate “contextual” interpretation of the Jordan ruling within the territory, recognizing the “unique cultural circumstances and exceptional challenges found in Nunavut.”

Some of those unique circumstances include the territory’s “unforgiving” environment, and its 25 remote communities, which are accessible to the court by plane only.

Circuit courts reach some Nunavut communities only twice a year, Bychok said, and court travel budgets were already overstretched at $2.48 million during the 2016-17 fiscal year.

Blizzards, poor infrastructure or transportation failures mean that very remote communities, like Kugaaruk, may not be visited by a circuit court for over a year under the worst circumstances.

“The cancellation of a Nunavut court circuit has an impact out of all proportion to a similar cancellation in the South,” Bychok said.

Bychok criticized Nunavut’s “staggering” lack of restorative infrastructure, which in turn contributes to repeat offenders and is a problem not accounted for in the Jordan ruling.

“Alcohol abuse is tearing apart the fabric of our society,” Bychok said, and “fills our criminal and family court dockets as well as our jails.”

“Yet, 19 years after division from the Northwest Territories, Nunavut still does not have a single residential treatment centre.”

And Nunavut court policy to stand down cases for burials, funerals and seasonal hunting under Inuit Qaujimajatuqangit, across a vast landmass, further complicates administration of the law under the Jordan deadline.

Bychok’s written responses on the Jordan ruling fulfills a promise he made during a decision delivered orally in court last November, when addressing the Jordan application of Lukasie Anugaa.

Bychok ultimately denied that application on the grounds that multiple mistrials and delays in the case, incurred by Anugaa, brought the total processing period below the 30-month Jordan deadline.

(5) Comments:

#1. Posted by Common Sense on February 07, 2018

Do court by Video Conference. Hire more judges. Put a Justice of the Peace in more communities. Actually give people who deserve to be in jail a proper sentence so they don’t re-offend and clog up the courts. Many viable solutions.

#2. Posted by sled dog on February 07, 2018

The judge called for a separate “contextual” interpretation of the Jordan ruling within the territory, recognizing the “unique cultural circumstances and exceptional challenges found in Nunavut.”

Is that contextual interpretation for all who are charged in Nunavut or a certain group of citizens?

#3. Posted by Like the man said: "the round Nunavut hole" on February 07, 2018

lol it’s a hole all right, a deep one keeps getting bigger.

If colonialism is still here then whats been happening since 1993 and 1999 when we got the Nunavut land claim, hello NTI and GN you had 20 years to stamp out the colonialism and make our land great again

#4. Posted by common sense on February 07, 2018

Anyone that has witnessed the (dog and pony show) they call court in the communities in Nunavut will know that
the crown has lots of excuses for delay. Nunavut is still part of Canada and the law of the land should be practiced here too.What makes us so special.
30 months to go to trial is unacceptable.The court takes so long up here because most of the time the crown is to say the least ill prepared.shame on you.

#5. Posted by Lawyer1 on February 08, 2018

The procedure of choice in Nunavut seems to be to hold the accused in jail until they confess. It’s so much easier than having to collect evidence and build a solid case. And if you don’t go to trial you never loose.